Delhi High Court

M/S Saraswati Educational ... vs State And Another on 24 April, 2009

Author: Reva Khetrapal

                                        REPORTED
*     IN THE HIGH COURT OF DELHI AT NEW DELHI



%                                   DATE OF DECISION: April 24, 2009



+                     CRL.REV.P. 99/1992



      M/S SARASWATI EDUCATIONAL SOCIETY
      & ORS                                    ..... Petitioners
                      Through: None
               versus
      STATE & ANR                              ..... Respondents
                      Through: Mr. U.L. Watwani, APP for the State/R-1
                               Mr. Rajesh Mahajan, Advocate for R-2.

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1.    Whether reporters of local papers may be allowed
      to see the judgment?
2.    To be referred to the Reporter or not?
3.    Whether judgment should be reported in Digest?


:     REVA KHETRAPAL, J. (Oral)

1. This revision petition is directed against the judgment and order dated

18th March, 1992 passed by the Addl. District and Sessions Judge, New Delhi,

affirming the judgment of the learned Metropolitan Magistrate, whereby and

whereunder the petitioners were found guilty of an offence punishable under

Section 14 read with Section 29(2) of the Delhi Development Act and each of

the petitioners was sentenced to pay a fine of Rs.1,000/-.

2. The brief facts leading to the filing of the present petition are that the

petitioner No.1 is a registered Society and is running a school in the name and

style of M/s. Holly Innocent Public School, at premises No.B-3/175,

Janakpuri, New Delhi. The petitioner No.2 is the Secretary and the petitioner

No.3 is/was the President of the Society. The Delhi Development Authority

filed a complaint against the accused persons alleging that on 20th October,

1986 the premises bearing No.B-3/175, Janakpuri, New Delhi was inspected

by the staff of the Delhi Development Authority and on inspection it was found

that a school was being run in the said premises by M/s. Saraswati Educational

Society. It was also alleged that according to the provisions of the Master Plan,

the premises can only be used for residential purpose and that user of the same

for a purpose other than residential is a violation of Section 14 read with

Section 29(2) of the Delhi Development Act.

3. As already stated, on the basis of the evidence on record, both the courts

below found the petitioners guilty of an offence punishable under Section

29(2) read with Section 14 of the Delhi Development Act, 1957 and as such

convicted them under the said Sections and sentenced them to pay a fine of

Rs.1,000/- each, and in default of payment of fine the petitioners No.2 and 3

were directed to undergo simple imprisonment for two months each, whereas

the fine from the petitioner No.1 was directed to be recovered through warrants

of attachment.

4. Aggrieved by the judgment and order dated 18th March, 1992 passed by

the learned trial court, the present revision petition has been filed in this Court

impugning the aforesaid judgment and order and praying that the records of the

Criminal Appeal No.15/1990 in Case No.1340/1987 titled "DDA Vs. M/s.

Saraswati Educational Society and Others", decided on 18.03.92 by the Addl.

Sessions Judge be called for and the aforesaid orders passed by the learned

Addl. Sessions Judge be set aside.

5. I have heard the learned counsel for the respondent No.2/DDA, Shri

Rajesh Mahajan, Advocate. No one has appeared on behalf of the petitioners.

On the last date of hearing also, that is, 19th January, 2009, none had appeared

on behalf of the petitioners, though on the date prior to that, that is, 22 nd

September, 2008, the counsel for the petitioners had sought time to verify the

factum of demise of petitioner No.2, Shri Gulshan Bahadur Makkar.

6. With the assistance of the counsel for the respondent No.2/DDA, the

records have been perused by me including the statement of PW-1, who

deposed that on 20.10.1986, the premises in question was being used for

running a school in the name and style of Holly Innocent Public School on the

ground floor. He further deposed that he had seen 11 teachers and 250 students

were found studying there. According to this witness, the school was being run

by M/s. Saraswati Educational Society, a registered body, and Major Sahib

Ram and Gulshan Bahadur Makkar were the Secretary and Vice President of

the Society respectively and responsible for and in charge of the running of the

school. The witness also testified that the premises in question falls in

Development Zone No.G-13 of the Master Plan for Delhi and can be used for

residential purposes only, as shown in Exhibit PW-4/H and as clarified by the

marginal notes Ex.PW-1/J.

7. In their statements recorded under Section 313/281 Cr.P.C., the

petitioners have admitted that the school was being run in the premises in

question by Saraswati Educational Society and that Gulshan Bahadur Makkar

is its Vice President, whereas Major Sahib Ram is its Secretary, and both are

responsible for and in charge of the functioning of the said school. As a matter

of fact, the learned defence counsel in the trial court did not argue on the

merits of the case and merely stated that a lenient view may be taken.

8. The impugned order has been assailed in this Court principally on the

ground that the prosecution of the petitioners by the respondent No.2 in

violation of the Master Plan is bad, as the Master Plan which came into force

on 01.09.1962 had expired on 31.08.1982 and the petitioners could not have

been prosecuted for the alleged violation on 20.10.1986; that there is no Zonal

Development Plan which identifies the user of the premises and the provisions

of the Master Plan could not be applied till the Zonal Development Plan was

prepared under Section 8 of the Act; and that the premises in question is being

used for the purpose of running a school, which is permitted user as per the

Master Plan and the Zonal Plan. It is also urged that the complaint filed by the

DDA was bad as the sanction accorded under Section 49 of the DDA Act was

not in accordance with law, but was in a cyclostyled proforma, filled in by the

Junior Engineer and signed by the Additional Secretary (Enforcement).

9. From the records, in my view, it clearly emerges that the premises in

question were being used for the purpose of running a school. It is also clear

that running of a school is permitted user under the provisions of the Master

Plan. It also stands conclusively proved by PW-1 that the Lay out plan of

Janakpuri was duly sanctioned by the DDA and the premises in question viz.,

B-3/175, Janakpuri, New Delhi are shown as "Residential" in this Plan. Thus,

it stands established that though the running of a school/educational institution

is a permitted user under the provisions of the Master Plan, but the premises in

question can only be used for residential purposes according to the Lay out

Plan of Janakpuri.

10. A Division Bench of this Court in the case of Delhi Development

Authority Vs. National Tonnage Clubs of Farmers, New Delhi and Anr.

1984 Cr.L.J. 268, while dealing with the question as to whether non-

conforming use of a residential house by using a part thereof for running a club

amounted to committing an offence under Section 29(2) of the Delhi

Development Act, noted that the Master Plan for Delhi divides the whole of

Delhi into various Zones such as residential, commercial, industrial,

recreational, etc. and at page 48 provides that in the residential "use zones" the

following uses are permitted.

"Residences, hostels and boarding houses with density limitations; nurseries kindergartens and schools; clinics, social and cultural institutions with adequate parking facilities; public utilities and buildings except service and storage yards; non- commercial farms, agricultural gardens, nurseries and green houses; any neighborhood recreational uses including clubs and other semi-public recreational uses; accessory uses clearly incidental to residential use (except retail shops and service uses) which will not create a nuisance or hazard."

11. The Division Bench in Paragraphs-10, 11 and 12 of the said case held as

follows:-

"10. The learned Magistrate seems to be of the view that since social and cultural institutions are included in the residential (use zones) therefore, if any building in the residential zone is used for any of the permitted 'uses', the use would be legal and valid.

11. In our view, the above approach of the learned Magistrate is not correct. A residential zone would require a number of facilities such as clubs, schools, nurseries, clinics, social and cultural institutions, etc. But this does not mean that a building or premises meant for residential purpose can be put to any of the uses permitted in a residential zone. The zonal development plans earmark the sites or the areas in the residential zone which can be put to the various uses such as schools, nurseries, clinics, social and cultural institutions, etc. and those areas can be used for the purpose for which they are

earmarked. But it does not mean that a residential house can be used as a school or a club or for any other use which is permitted in a residential zone. There is an exception and that is that the competent authority can after a special appeal permit certain other uses (page 48 of the Master Plan). There is no plea that the competent authority had permitted the respondents to use the premises as a Club.

12. It is not disputed that the premises in question is a residential house. A residential house cannot indiscriminately be put to any of the uses permitted in a residential zone. A residential house can only be used for residence."

12. In Harvir Giri Vs. Delhi Development Authority reported in 44 (1991)

DLT 225, it was again held that a residential building used for running a

school (which was existing even prior to the coming into force of the Master

Plan and Zonal Plan) was non-conforming use, in violation of the Master Plan

and the Development Plan, amounting to the commission of the offence

punishable under Section 29(2) read with Section 14 of the Delhi Development

Act.

13. The aforesaid decisions squarely apply to the facts of the present case

and relying upon the same, I have no hesitation in holding that the premises in

question can be used only for residential purposes as set out in the Master Plan

and Layout Plan and cannot be put to any other use in violation of the Master

Plan and the Layout Plan. The running of a school in the said premises would